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SOMETIMES, EVEN AN EXONERATION CAN BE SCARY

[Posted March 25, 2015] For the first time in the 21st Century, the Supreme Court of the United States has issued a show-cause order to a lawyer, threatening to sanction him for conduct in the course of appellate litigation. The Court directed a lawyer at the megafirm Foley & Lardner to explain why some of the language in his cert petition was – get this – hard to understand.

That may sound benign to you. And indeed, I suspect that the justices at Ninth and Franklin get that kind of brief all the time; they’re rolling their eyes now at the concept.

Here’s the lowdown: SCOTUS’s rules require that cert petitions be written “briefly and in plain terms.” Rule 14.3. But this was a highly technical case involving intellectual-property claims and artificial intelligence.

If that were all, we might not have an issue. After all, one of the requirements of appellate advocacy is to be able to express complicated subject matter in terms that legal generalists (that would be the justices) can understand without having to spend a lot of time looking up terms. Using English instead of technology-ese (or even legalese) helps a lot.

But this case was different because of the client, a German inventor who insisted upon retaining control over the content of the brief. The client sculpted the problematic portions of the brief himself – probably to ensure that the lawyer wouldn’t screw things up in a technical subject – and the lawyer signed and filed the petition. Now we have a problem.

I’ll let you know that it all ends happily; the Court dismissed the show-cause on Monday, so the lawyer can breathe more easily. He does, however, now have to pay Paul Clement’s bill for representing him in the show-cause proceeding.

I have a couple of observations about this highly unusual proceeding. First, I earnestly hope that the SCV justices and the CAV judges don’t derive any inspiration from this, that they can threaten to sanction lawyers for filing 35 pages of mush. In truth, I really doubt they’ll follow suit; but don’t think that it hasn’t crossed their minds by now.

Second, I deal with this situation in a way that probably wasn’t available to the Foley & Lardner lawyer: In all of my appeals, I insist that I’ll have the final say in all briefs that I file. That isn’t negotiable; if my signature is going on the brief, I won’t let anyone else compel me to say anything a particular way. I solicit input and comments from my clients and customers all the time, of course; but in the end, a ship can have only one captain.

Reading between the lines, I suspect that the lawyer in this IP case was put on terms to agree to the client’s authorship. Major clients can and sometimes do exert that kind of pressure on lawyers – do it my way, or I’ll take my business to another law firm. In such situations, it falls to the lawyer to use a bit of diplomacy – backed by a fair dose of professional courage – in advising the client that it’s not in the client’s interest to do things that way.

I can guarantee you that Foley & Lardner has that policy firmly in place by now.